566 F.2d 242 (D.C. Cir. 1977), 75-2218, Mead Data Central, Inc. v. United States Dept. of Air Force

Docket Nº:75-2218.
Citation:566 F.2d 242
Case Date:August 30, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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566 F.2d 242 (D.C. Cir. 1977)




No. 75-2218.

United States Court of Appeals, District of Columbia Circuit

August 30, 1977

Argued Nov. 18, 1976.

Rehearing and Rehearing en banc denied Nov. 28, 1977.

As Amended Sept. 27, 1977.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Robert N. Sayler, Washington, D. C., for appellant.

Michael H. Stein, Atty., Dept. of Justice, Washington, D. C., for appellees. Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Leonard Shaitman, Ronald R. Glancz, and Karen K. Siegel, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellees.

Before DANAHER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

Dissenting opinion filed by McGOWAN, Circuit Judge.

TAMM, Circuit Judge:

Mead Data Central, Inc. appeals from a judgment of the United States District

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Court for the District of Columbia, 402 F.Supp. 460, holding that seven documents relating to a licensing agreement between the United States Department of the Air Force and West Publishing Co. need not be disclosed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970 & Supp. V 1975), because they fall within exemption five of the FOIA. 1 While we agree with the district court that the attorney-client privilege and the deliberative process privilege are essential ingredients of exemption five, we find that both the Air Force and the district court applied interpretations of the scope of those privileges that are impermissibly broad, and accordingly remand the case to the district court for further consideration under the narrower constructions set forth in this opinion. We also hold that the Air Force did not adequately justify its claim that there was no non-exempt information which was reasonably segregable, and direct that agency segregability decisions be accompanied by adequate descriptions of the documents' content and articulate the reasons behind the agency's conclusion.


In early 1975, Mead Data filed a FOIA request with the Air Force seeking disclosure of several categories of documents dealing generally with the Department's "Project FLITE," a computerized legal research system. 2 The Air Force agreed to disclose some of the requested documents, but the Chief of the General Litigation Division of the Office of The Judge Advocate General advised Mead Data by letter that eight of the documents would be withheld. J.A. at 7-8. He provided a very brief description of each document 3 and asserted that "(t)he foregoing are exempt from disclosure under . . . 5 U.S.C. 552(b)(5), as attorney work products or intra-agency memoranda." J.A. at 8. Mead Data appealed this decision to the Office of the Secretary and was informed that, although one of the eight documents would be disclosed, 4 the remaining seven would not. The Air Force characterized three of these seven documents as legal opinions of Air Force attorneys advising their client as to applicable law and recommending courses of action with respect to Project FLITE. The other four were described as internal memoranda prepared by Air Force employees, which reflect the course of negotiations between the Air Force and West Publishing Co. for a licensing agreement to use the copyrighted West key number system and offer recommendations as to negotiating positions. 5 The Air Force claimed that the legal opinions fell within the attorney-client privilege incorporated into exemption five of the FOIA, and that the internal memoranda were also covered by that exemption because their disclosure would adversely affect the decisional process within the Air Force by inhibiting the expression of candid opinions. J.A. at 9-10.

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Mead Data filed suit in the United States District Court for the District of Columbia seeking an injunction to compel the disclosure of the withheld documents. During the court proceedings the Air Force submitted two affidavits offering more detailed descriptions of the contents of the documents and the bases for nondisclosure. Taken together these affidavits described the seven withheld documents as follows: 6

  1. A legal opinion, addressed to the Patents Division of the Office of The Judge Advocate General of the Air Force and prepared by attorneys in the Litigation Division of the same Office, as to whether copyrighted material which the Air Force converts to machine-readable form would be subject to disclosure under the FOIA. It also reflects an orally communicated opinion of a Justice Department attorney on the same matter and does not contain any factual material.

  2. The request from the Patents Division which asked for the legal opinion labeled document 1. It reflects the status of the negotiations with West at the time of the request and asks for legal advice on how best to facilitate the on-going negotiations. It does not represent a final agency position in the negotiations.

  3. An undated, unsigned memorandum prepared in the Patents Division which sets forth for Air Force policy makers the offers and counter-offers in the negotiations between West and the Air Force regarding the licensing agreement to permit the Air Force to use copyrighted materials belonging to West. It contains predecisional information about ongoing negotiations.

  4. A legal opinion prepared by the Patents Division setting forth the background and negotiations with West and providing a legal rationale as to why a license from West would be necessary. It contains legal conclusions regarding the licensing agreement and recommendations as to what course the negotiations should take.

  5. A memorandum to the Chief of the Patents Division from the Office of the Assistant General Counsel of the Department of Defense commenting on the legal conclusions in the opinion labeled document 4. It also sets forth views on justifying to a congressional committee the obtaining of a license for storage and retrieval of copyrighted legal information. It does not contain any information other than legal opinions and conclusions.

  6. A handwritten, undated memorandum for the file prepared by a member of the Patents Division regarding a meeting between representatives of the Air Force and West to discuss prospects of the Department obtaining a license to use West's copyrighted materials. It reflects discussions among Air Force personnel regarding West's negotiations and current offers. The discussions regard predecisional views as to what positions the Air Force should consider in the negotiations.

  7. A handwritten, undated memorandum prepared by a member of the Patents Division regarding a telephone conversation with another Air Force employee on the staff of LITE 7 regarding the position of the LITE staff as to negotiations with West for a license to use copyrighted

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materials in the LITE data base. It reflects West's negotiations and current offers, and predecisional views as to what positions the Air Force should consider in the negotiations.

In one of the affidavits the Chief of the General Litigation Division also amplified the reasons for his initial decision to deny disclosure. He stated that there were no factual portions of the documents which could be reasonably segregated, that they were all part of the deliberative process of the Air Force in negotiating a licensing agreement with West, and that disclosure would impair the deliberative process within the Air Force by inhibiting the free and frank exchange of ideas among Air Force personnel. J.A. at 31-32.

The parties filed cross-motions for summary judgment, and following an in camera inspection of the seven documents, the district court entered a judgment in favor of the Air Force. The court noted that although the Air Force's initial description of the withheld documents hardly comported with the requirements of Vaughn v. Rosen 8 and Cuneo v. Schlesinger, 9 the elaborated description contained in the affidavits it had submitted to the court was adequate. On the merits, the court held that documents 1, 4, and 5 fall within the attorney-client privilege of exemption five and that documents 2, 3, 6, and 7 fit squarely within the same exemption because they reflect ongoing developments in a government negotiating process and discuss obstacles, alternatives, and recommendations as the agency progresses toward a final decision. J.A. at 39-41. Finally, the court stated that on the basis of its examination of the documents there is no factual or other non-exempt material which can be segregated and disclosed, and that disclosure of these documents would be harmful to future deliberations and contract negotiations. Id. at 41-42.


The dispute between the parties in this case over whether the information sought by Mead Data is within exemption five of the FOIA centers basically around the question of how that information ought to be characterized. Mead Data contends that the information is purely factual and that consequently its disclosure would not adversely affect the Air Force's deliberative process. The Air Force argues to the contrary and insists that the documents withheld consist of advisory opinions, recommendations, and other deliberative material that fall squarely within exemption five.

Where there is such a factual dispute over the nature of the information sought in a FOIA suit, the lack of access of the party seeking disclosure undercuts the traditional adversarial theory of judicial dispute resolution. Vaughn v. Rosen (Vaughn I), 157 U.S.App.D.C. 340, 344-45, 484 F.2d 820...

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